June 27, 2012

Hit by a car and there are no witnesses? There is reverse onus

What does Ontario have that bicycle advocates in British Columbia want?

Reverse onus.

Reverse onus is a hobbyhorse for David Hay, a Vancouver solicitor who is frequently called upon by cyclists and cycling advocacy groups. In the Cycling in the Law session on Tuesday at Velo-city Global 2012 in Vancouver, Hay offered his "view from the handlebars" about police competency in investigating cyclist crashes and injuries, and about the use of reverse onus in a number of jurisdictions.

Essentially, reverse onus means that the accused has to prove he/she was not in the wrong. Hay argues that reverse onus is an essential civil litigation remedy for cyclists, who are often alone when they are struck, so that the only witness is the person who struck them.

He told the jammed room that in many cases that he has seen, the cyclist is rarely interviewed at the scene (largely because EMS personnel remove the victim to hospital) and often, the cyclist may not be able to offer evidence of what happened: memory of the event may be erased by impact, was struck from behind and did not see what preceded the impact, etc.

Interviews are often done with those who remain at the scene: the driver, passengers and bystanders, who are often allowed to talk among themselves, which may prejudice their recollections. As well, the police may write their entire report based on the interviews with the "one side" of the incident, which can bias their reports.

Hay also said, "I'm disappointed at how seldom police take measurements or take photographs of the victims, of the position of the vehicle. If they just took that task more seriously," but many responding officers view a survivable cyclist-motorist incident as a likely civil matter, rather than criminal matter.

The answer is reverse onus: that the driver of a motor vehicle, when causing injury to a vulnerable road user, has to prove that he/she was not driving improperly or illegally.

He said that Canada, generally, has been slow in its development of cycling law, but one jurisidiction, Ontario, has a reverse onus provision for civil law, buried in the Highway Traffic Act, section 193.

It says, "When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle."

What does it mean for Ontario cyclists? Sadly, it does not apply to the death of a cyclist, although an argument could be made that the estate could make a claim against a motorist. It means that in the event of an injury or damage, a cyclist should be thinking about more than Criminal Code or Highway Traffic Act charges. Certainly, there should be pictures taken of the scene, and all evidence that can be gathered should be gathered. The co-operation of responding police officers should be sought.

Hay says the section does not appear to have been often cited. It sounds like it should be.

Comments

I've seen the stats from WRPS on the 618 collisions involving bicycles between 2006 and 2010. They claim that in 73% of the cases, the cyclist is in some way violating the HTA. However, the violation for 252 of those cases is 'other' which in most cases means that fault was assigned without a reason given in the report. If we have fault being assigned to cyclists in 41% of all collisions, (or over half where the cyclist is deemed at-fault) without explaining the reason why, that suggests to me that our police might be failing to apply reverse onus.

Contrast this with the overall stats for drivers - 45% of drivers involved in collisions were deemed 'driving properly' and the 'other' category for driver action contribution is only 10%. If we ignore the 'other' cyclists for a moment, we find that 46% of the remaining cyclists were riding properly.

I'm not saying that we should expect these figures to be exactly the same between modes, but the huge discrepancy seems very fishy to me. Reverse onus definitely needs more teeth.

I notice that the WRPS's time to lay a charge against a motorist who has rear-ended (and killed) a cyclist is improving. A few years ago it was 6 months. Lately, it was only 1 month. Still, if a motorist rear-ends a car he will probably be charged within an hour. I think there's still a lot of bias in their investigations.

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Bill Bean

North America is eventually going to figure out that, for all the right reasons, we need more bicycles on our roads. Dust off your bicycle and go cycling. And if the gas-burning dinosaurs start to crowd you, it's your road and you paid for it. Take the lane for yourself.

September 2013

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